TERMS OF ENGAGEMENT
[INSERT NAME OF SUB-PANEL]
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Table of contents
TERMS OF ENGAGEMENT
1.Glossary of terms, interpretation and miscellaneous
1.1Glossary of Terms
1.2Interpretation
1.3Miscellaneous
2.Role of the Consultant
2.1Engagement
2.2Standard of Care
2.3Authority to Act
2.4Knowledge of the Commonwealth's Requirements
2.5Notice of Matters Impacting on the Services or the Project
2.6Coordination
2.7Access to Consultant's Premises
2.8Conflict of Interest
2.9Subcontracting
2.10Statutory Requirements
2.11No authority to give directions or waive requirements
3.Role of the Commonwealth
3.1Information and Services
3.2Additional Information
3.3Access
3.4Making of Decisions
3.5Project Review
4.Personnel
4.1Commonwealth's Representative
4.2Replacement of Commonwealth's Representative
4.3Parties' Conduct
4.4Assistant Commonwealth's Representative
4.5Key People
5.Documentation
5.1Commonwealth's Documents
5.2Consultant's Documents
5.3No obligation to review
5.4Licence over Consultant Material
5.5Intellectual Property Warranties
5.6Intellectual Property Rights
5.7Commonwealth Material
5.8DCAP
6.Quality
6.1Quality Assurance
6.2Non-Complying Services
6.3Reperformance of the Non-complying Services
7.Time
7.1Progress
7.2Programming
7.3Consultant Not Relieved
7.4Suspension
7.5Acceleration
8.Variation
8.1Variation Price Request
8.2Variation Order
8.3Cost of Variation
8.4Rates and Prices
8.5Omissions
9.Payment
9.1Payment Obligation
9.2Payment Claims
9.3Payment Statements
9.4Payment
9.5Payment on Account
9.6Conditions Precedent to Entitlement to Payment
9.7Interest
9.8Correction of Payment Statements
9.9Right of SetOff
9.10Payment of Workers and Sub-consultants
9.11GST
10.Termination
10.1Preservation of Rights
10.2Consultant Default
10.3Contents of Notice of Default
10.4Termination for Insolvency or Breach
10.5Commonwealth's Entitlements after Termination
10.6Termination for Convenience
10.7Costs
11.Dispute resolution
11.1Scope of Dispute
11.2Notice of Dispute
11.3Arbitration Agreement
11.4Executive Negotiation
11.5Arbitration
11.6Survive Termination
11.7Continuation of Services
12.Notices
12.1Notice of Variation
12.2Notices of Other Claims
12.3Prescribed Notices
12.4Continuing Events
12.5Time Bar
12.6Other Provisions Unaffected
12.7Address for Service
12.8Deemed Receipt
13.General
13.1Equal Opportunity for Women
13.2Indigenous Opportunities
13.3Safe Base Alert State System
13.4Protection of Personal Information
13.5Use of Australian and New Zealand Materials
13.6Freedom of Information
13.7Long Service Leave
13.8National Code of Practice for the Construction Industry
13.9Assignment
SCHEDULE - PHASE FOR MANAGING CONTRACTOR DELIVERY
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TERMS OF ENGAGEMENT
1.Glossary of terms, interpretation and miscellaneous
1.1Glossary of Terms
Unless the context otherwise indicates, whenever used in this Contract, each word or phrase in the headings in this clause 1.1 has the meaning given to it under the relevant heading.
Approval
Any licence, permit, consent, approval, determination, certificate, notice or other requirement of any Commonwealth, State, Territory or local authority, body or other organisation having any jurisdiction in connection with the Site, the Project or the Services or under any other applicable Statutory Requirement, which must be obtained or satisfied in connection with the Project.
Award Date
The date stated in the Contract Particulars.
Brief
The brief described in the Contract Particulars.
Change of Control
In relation to the Consultant, where a person who did not (directly or indirectly) effectively Control the Consultant at the Award Date, either alone or together with others, acquires Control of the Consultant.
Claim
Includes any claim for an increase in the Fee, for payment of money (including damages) or for any other compensation or relief:
(a)under, arising out of, or in any way in connection with, the Contract, including any direction of the Commonwealth's Representative;
(b)arising out of, or in any way in connection with, the Project, the Services or either party’s conduct before the Contract; or
(c)otherwise at law or in equity including:
(i)by statute;
(ii)in tort for negligence or otherwise, including negligent misrepresentation; or
(iii)for restitution.
Commonwealth
Commonwealth of Australia.
Commonwealth's Program
Any program, as amended from time to time, prepared by or on behalf of the Commonwealth setting out the times for the Completion of the whole or any part of the Services and the Project, including the Milestones.
Commonwealth's Representative
The person nominated in the Contract Particulars or any other person nominated by the Commonwealth from time to time under clause 4.2 to replace that person.
Commonwealth Material
All material provided to the Consultant by the Commonwealth, including documents provided in accordance with clause 5 and any other documents, equipment, machinery and data (stored by any means).
Commonwealth Risks
Any one of:
(a)war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection or military or usurped powers, martial law or confiscation by order of any government or public authority;
(b)the use or threat of unlawful violence against persons or property which does not arise out of any individual relationship between the perpetrator and the victim, or for purposes of robbery, but which is directed at victims as members of a class, race, organisation, nationality, religious or ethnic group, or which is intended to intimidate, coerce or inflict revenge upon any civilian population, government, institution or corporation; and
(c)ionising radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel not caused by the Consultant or any Sub-consultant or any of their employees or agents.
Completion
The point in time when, in respect of a Milestone, everything required by this Contract or a Project Contract to have been completed as a condition precedent to Completion of the Milestone has been completed in accordance with this Contract or the Project Contract.
Consultant
The person named in the Contract Particulars.
Consultant Material
All material brought, or required to be brought, into existence by the Consultant as part of, or for the purpose of, carrying out the Services including documents, equipment, reports, technical information, plans, charts, drawings, specifications, calculations, tables, schedules, data (stored by any means), photographs and finishes boards.
Consultant's Representative
The person named in the Contract Particulars or any other person from time to time appointed as Consultant's Representative in accordance with clause 4.5.
Contract
The contractual relationship between the parties constituted by the documents referred to in the Letter of Acceptance.
Contract Particulars
The particulars annexed to the Letter of Acceptance and entitled "Contract Particulars".
Control
Includes:
(a)the ability to exercise or control the exercise of the right to vote in respect of more than 50% of the voting shares or other form of voting equity in a corporation;
(b)the ability to dispose or exercise control over the disposal of more than 50% of the shares or other form of equity in a corporation;
(c)the ability to appoint or remove all or a majority of the directors of a corporation;
(d)the ability to exercise or control the exercise of the casting of a majority of the votes cast at the meetings of the board of directors of a corporation; and
(e)any other means, direct or indirect, of dominating the decision making and financial and operating policies of a corporation.
direction
Any agreement, approval, authorisation, certificate, consent, decision, demand, determination, direction, explanation, failure to consent, instruction, notice, notification order, permission, rejection, request or requirement.
Executive Negotiators
The representatives of the parties nominated in the Contract Particulars or any person nominated by the relevant party to replace that person from time to time by notice in writing to the other party.
Fee
The amount determined in accordance with the Contract Particulars, as adjusted, subject to clause 12.5 (if applicable), under the Contract.
GST
The tax payable on taxable supplies under the GST Legislation;
GST Legislation
This includes A New Tax System (Goods and Services Tax) Act1999 and any related Act imposing such tax or legislation that is enacted to validate, recapture or recoup such tax.
Industry Guidelines
The Industry Guidelines for the Industrial Relations and Occupational Health and Safety Components of the National Code of Practice for the Construction Industry, to be found at
Insolvency Event
Any one of the following:
(a)the Consultant informs the Commonwealth in writing, or its creditors generally, that the Consultant is insolvent or is unable to proceed with the Contract for financial reasons;
(b)execution is levied against the Consultant by a creditor;
(c)where the Consultant is an individual person or a partnership including an individual person, the Consultant:
(i)commits an act of bankruptcy;
(ii)has a bankruptcy petition presented against him or her or presents his or her own petition;
(iii)is made bankrupt;
(iv)makes a proposal for a scheme of arrangement or a composition; or
(v)has a deed of assignment or deed of arrangement made, accepts a composition, is required to present a debtor’s petition, or has a sequestration order made, under Part X of the Bankruptcy Act 1966 (Cwlth); or
(d)where the Consultant is a corporation, any one of the following:
(i)notice is given of a meeting of creditors with a view to the corporation entering into a deed of company arrangement;
(ii)the corporation entering a deed of company arrangement with creditors;
(iii)a controller, administrator, receiver, receiver and manager, provisional liquidator or liquidator is appointed to the corporation;
(iv)an application is made to a court for the winding up of the corporation and not stayed within 14days;
(v)a winding up order is made in respect of the corporation;
(vi)the corporation resolves by special resolution that it be wound up voluntarily (other than for a members’ voluntary windingup); or
(vii)a mortgagee of any property of the corporation takes possession of that property.
Intellectual Property Rights
All statutory and other proprietary rights in respect of inventions, innovations, patents, utility models, designs, circuit layouts, mask rights, copyrights (including future copyrights), confidential information, trade secrets, know-how, trade marks and all other rights in respect of intellectual property as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation of July 1967.
Letter of Acceptance
The letter issued by the Commonwealth to the Consultant under the Panel Agreement, entitled "Letter of Acceptance" and engaging the Consultant to perform the Services.
Milestone
A milestone described in the Contract Particulars.
Moral Rights
Has the meaning given by the Copyright Act 1968 (Cwlth).
National Code
The National Code of Practice for the Construction Industry, to be found at
Other Contractor
Any consultant, contractor, supplier or other person engaged or to be engaged by the Commonwealth, other than the Consultant and a Project Contractor.
Panel Agreement
The Panel Agreement for the ### Panel between the Commonwealth and the Consultant, which has a Base Date (as defined in the Panel Agreement) of 1 December 2004.
Project
The project described in the Contract Particulars.
Project Contractors
Any person who is engaged by the Commonwealth to deliver any aspect of the Project under a Project Contract.
Project Contracts
The project contracts described in the Contract Particulars.
Project Documents
Includes:
(a)Consultant Material;
(b)Commonwealth Material;
(c)Approvals;
(d)without limiting paragraphs (a) - (c), any other material:
(i)produced; or
(ii)provided, or required to be provided, to the Commonwealth or the Commonwealth's Representative,
under, for the purposes of or in connection with the Contract, the Services or the Project by, for or on behalf of the Consultant including all documents, papers, books of account, labour time sheets, invoices (whether for services, materials, plant hire or otherwise), financial accounts, reports, databases or other information stored in any electronically-retrievable medium, technical information, plans, drawings (including as-built drawings), specifications, charts, calculations, tables, schedules, correspondence (including correspondence by third parties to the Consultant), internal memoranda, minutes of meetings, diary notes, audio material, visual material, audio-visual material, working papers, draft documents and any other material of a similar nature to those materials relating to or arising out of or in connection with the Contract, the Services or the Project; and
(e)without limiting paragraphs (a) - (d), all material at any time derived (under, for the purposes of or in connection with the Contract, the Services or the Project) from, or based on, the material described in paragraphs (a) - (d).
Schedule of Rates
The document attached in Appendix 1 to the Panel Agreement.
Services
Means:
(a)the services outlined in, or reasonably to be inferred from, the Brief; and
(b)all other services, of a type generally consistent with the services referred to in paragraph (a), which may be required by the Commonwealth in connection with the Project.
Services DCAP
The "Detailed Consultant's Activities Proposal" referred to in the Contract Particulars, as amended from time to time in accordance with clause 5.8.
Site
The site for the Works described in the Contract Particulars.
Statutory Requirements
Includes any:
(a)law of the Commonwealth or of a State or Territory or a local body, including Acts, ordinances, regulations, by-laws and other subordinate legislation;
(b)Approvals (including any conditions or requirement under them); and
(c)requirements of the Commonwealth (including the Defence Manual of Fire Protection Engineering as amended or substituted from time to time),
applicable to the Site or the Services.
Variation
Unless otherwise stated in the Contract, means any change to the Services, including any addition, increase, decrease, omission or deletion to or from the Services.
Works
The facilities described in the Contract Particulars.
1.2Interpretation
In this Contract unless the context indicates a contrary intention:
(a)words in the singular include the plural and vice versa;
(b)references to a person include an individual, firm, corporation or unincorporated body;
(c)except in clause 1.1, headings are for convenience only and do not affect the interpretation of this Contract;
(d)references to any party to this Contract include its successors or permitted assigns;
(e)a reference to a party, clause, Annexure, Schedule, or exhibit is a reference to a party, clause, Annexure, Schedule or exhibit of or to this Contract;
(f)references to this Contract and any deed, agreement or instrument are deemed to include references to this Contract or such other deed, agreement or instrument as amended, novated, supplemented, varied or replaced from time to time;
(g)words denoting any gender include all genders;
(h)references to any legislation or to any section or provision of any legislation include any:
(i)statutory modification or reenactment of or any statutory provision substituted for that legislation, section or provision; and
(ii)ordinances, bylaws, regulations and other statutory instruments issued under that legislation, section or provision;
(i)no rule of construction applies to the disadvantage of a party on the basis that the party put forward the Contract or any part;
(j)a reference to "$" is to Australian currency;
(k)where under the Contract:
(i)a direction is required to be given or must be complied with; or
(ii)payment of money must be made,
within a period of 7 days or less from a specified event, then Saturdays, Sundays and public holidays in the place where the Project is to be situated will not be counted in computing the number of days;
(l)for the purposes of clauses 9.3 and 9.4 references to "business days" are to days other than:
(i)a Saturday or Sunday or the 27th, 28th, 30th or 31st day of December; or
(ii)a public holiday in the State or Territory in which the Site is situated;
(m)other than as set out in paragraph (k) and (l) references to "day" are references to calendar days;
(n)the words "including" and "includes", and any variants of those words, will be read as if followed by the words "without limitation";
(o)where a clause contains two options, the option specified in the Contract Particulars will apply; and
(p)derivatives of a word or expression which has been defined in clause 1.1 will have a corresponding meaning to that assigned to it in clause 1.1.
1.3Miscellaneous
(a)This Contract is subject to and is to be construed in accordance with the laws of the State or Territory set out in the Contract Particulars.
(b)None of the terms of the Contract can be waived, discharged or released at law or in equity unless both parties agree in writing.
(c)This Contract constitutes the entire agreement and understanding between the parties and will take effect according to its tenor despite:
(i)any prior agreement in conflict or at variance with the Contract; or
(ii)any correspondence or other documents relating to the subject matter of the Contract which may have passed between the parties prior to the Award Date and which are not included in the Contract.
(d)Where a party comprises two or more persons, each person will be jointly and severally bound by the party’s obligations under the Contract.
(e)Any provision in this Contract which is illegal, void or unenforceable will be ineffective to the extent only of such illegality, voidness or unenforceability and such illegality, voidness or unenforceability will not invalidate any other provision of the Contract.
(f)This Contract and the Project Documents are confidential and the Consultant must not disclose any of these without the prior written consent of the Commonwealth except to the extent that the disclosure is required for the Consultant to carry out its obligations under the Contract.
(g)The Consultant must indemnify the Commonwealth against:
(i)any liability to or claim by a third party including a Project Contractor or an Other Contractor; and
(ii)all costs, losses and damages suffered or incurred by the Commonwealth,
to the extent arising out of or in connection with any breach by the Consultant of a term of this Contract.
(h)All obligations to indemnify under this Contract survive termination of the Contract.
2.Role of the Consultant
2.1Engagement
The Consultant must carry out the Services in accordance with:
(a)this Contract; and
(b)the Project Contracts.
2.2Standard of Care
The Consultant:
(a)must exercise the standard of skill, care and diligence in the performance of the Services that would be expected of an expert professional provider of the Services;
(b)warrants that each of its sub-consultants will exercise the standard of skill, care and diligence that would be expected of an expert professional provider of the service being provided by the sub-consultant;
(c)must ensure that the Consultant Material complies with the requirements of the Contract;
(d)must ensure that the Services are provided economically and in accordance with any budgetary requirements of the Commonwealth notified to the Consultant; and
(e)must exercise the utmost good faith in the best interests of the Commonwealth and keep the Commonwealth fully and regularly informed about all matters affecting or relating to the scope or cost of the Services or the Project or otherwise.
2.3Authority to Act
Other than as expressly authorised, the Consultant has no authority to, and must not:
(a)enter into any contracts, commitments or other legal documents or arrangements in the name of, or on behalf of, the Commonwealth; or
(b)take any act or step to bind or commit the Commonwealth in any manner, whether as a disclosed agent of the Commonwealth or otherwise.
The Consultant is an independent Consultant and is not, and must not purport to be, a partner or joint venturer of the Commonwealth.
2.4Knowledge of the Commonwealth's Requirements
The Consultant must:
(a)inform itself of the Commonwealth’s requirements for the Services and the Project;